P L D 1999 Karachi 465 (PLP)

WAHID BUX BROW, J. The applicant is charged with possession of 2 kilogram of Charas before the Special Judge, Narcotic Substances Mirpurkhas. The offence, it may be observee, is punishable with imprisonment for life. The main ground urged by Mr. Nisar Ahmed Durrani learned counsel for the applicant appears to be that through the quantity of the narcotic recovered from the applicant was two kilogram only 150 grams were sent up for chemical analysis. We are not particularly impressed by this contention. There does not appear to be any specific provision or settled principles of law requiring that the entire quantity, and not merely sample, out of the narcotic substance/drugs recovered from the accused person should be sent up for chemical analysis. The learned counsel placed reliance on the reported case Nisar Khan v. The State (1997 MLD 1743), wherein the Division Bench of Lahore High Court made observations with regard to the quantity of Narcotic Substance to be forwarded to Chemical Analyser in the following terms: "Since the quantity of narcotic and intoxicants determines the forum and quantum of sentence under various laws and there is no quantity of sample fixed under the law to be supplied for analysis to the Public Analyst as is fixed by Rule 46 of the West Pakistan Pure Food Rules, 1965, it would be appropriate that the seizing Authorities retain 1/3rd quantity of the narcotics/intoxicants allegedly recovered with them and send rest of the 2/3rd to the Public Analyst for test and examination for determination of the proper forum for trial and the quantum of sentence that may be awarded to the accused if found guilty of the offence under various laws on the subject. " In the first instance, it may be noted that ultimately bail was allowed to the accused in the cited case mainly on the ground that the investigation was not conducted by duly authorized officer and that the petitioner was no more required for the purpose of investigation, and the aforesaid observations were not considered as a probative factor constituting a ground for bail. Likewise. on the analogy of what was prescribed under Rule 46 of the West Pakistan Pure Food Rules, 1965 it was expressed as an obiter dictum that it would be appropriate if 1/3rd quantity of the Narcotic/intoxicant is retained by the seizing Authority and the rest of 2/3rd is sent to the Public Analyst. No conclusion was drawn to the effect that the quantity sent to the Chemical Analyser would be deemed to be the quantity recovered for the purpose of determining quantum of sentence. Indeed, the evidence of the recovery of the remaining portion retained by the seizing Authority cannot be rejected while deciding bail application on the simple ground that it was not forwarded to the Chemical Analyser. for it would amount to deeper and conclusive appreciation of evidence on the most important point of fact of recovery. In our humble view the prescribed requirements of Pure Food Rules may not furnish appropriate guidelines in narcotic offences cases. If one has to refer to some analagous law, it may be far more pertinent to consider by analogy, the wisdom behind introducing second and third provisos to section 516-A. Cr.P.C. in favour of the above proposition. Under second proviso, of course during the trial samples can be drawn of the whole lot of the narcotic substance for the purpose of safe custody and production before the trial Court or any other Court and the remaining huge quantity can be destroyed. The second proviso ?ays down that such samples shall be deemed to represent the whole of the property in any inquiry or proceedings in relation to such offence therefore any authority or Court. The logic behind such enactment being that retention of explosives or narcotics in large quantities could be harmful to public and their early destruction is desirable. This being so. the sample drawn out of the whole lot during the investigation can equally be treated as a piece of whole substance, therefore, the observation in the aforesaid authority that 2/3rd of the recovered material may be forwarded to Chemical Examiner for anlaysis cannot essentially be made a general rule in narcotic offences. Obviously, a Chemical Analyser may not have the facility of safely storing narcotics in large quantities. Alternatively, learned counsel argued that only 150 grams should be deemed to have been recovered from the applicant and in this context he relied upon a judgment of this Court in Nazan Shah v. The State (1998 PCr.LJ 1540) where though two kilograms of narcotic were recovered, only 500 grams were referred to the Chemical Analyser and their Lordships found it appropriate to admit the applicant to bail. With profound respects, it is settled that a decision in every criminal case proceeds on its own set of facts. In the reported case there was evidence that though 500 grams of narcotic were sent for chemical analysis the report showed only 245 grams-having been received. Besides, there was prima facie evidence of police enmity against applicant. Both these factors are absent in the present case. Moreover, there are severe constraints on the powers of Courts to grant bail under section 51 of the Control of Narcotic Substances Act, 1997. We would, therefore, dismiss this application. N.H.Q./F-61/K???????????????? Bail disallowed.